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The Canadian Charter of Rights and Freedoms. Chapter 2. Background. The Canadian Charter of Rights and Freedoms was entrenched (safeguarded) in the Canadian Constitution on April 17, 1982 . This means that our rights and freedoms are protected by the constitution.
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Background • The Canadian Charter of Rights and Freedoms was entrenched (safeguarded) in the Canadian Constitution on April 17, 1982. • This means that our rights and freedoms are protected by the constitution. • TheCharter applies to every level of government and overcomes the limitations of the previous Bill of Rights. • Most rights are not absolute; can be limited but this must be justified.
Reasonable Limits Clause • Section 1 of theCharter is the Reasonable Limits Clause. • Rights and freedoms may be limited if the limitation can be justified in a free and democratic society. • Courts usually decide what "reasonable" means on a case by case basis. • E.g. a person's freedom of expression may be limited if they are promoting hate speech.
Analyzing a Charter case • A simple four step guide to analyzing a potential Charter case: • Does theCharter apply to the case? • Has a right or freedom in theCharter been infringed upon? • Does Section 1 (the reasonable limits clause) justify the infringement? • If not, is there a remedy provided by theCharter?
The Notwithstanding Clause • Section 33 of theCharter, also referred to as the "overriding clause" and the "opt-out clause" • This clause allows governments to enact or maintain laws notwithstanding (or in spite of) the fact they may violate rights and freedoms in theCharter. • If a government uses this clause, the law they are enacting must be reviewed every 5 years.
Fundamental Freedoms • Section 2 of theCharter explains the basic freedoms provided to all Canadians. • These are fundamental freedoms: • Freedom of Conscience and Religion • Freedom of Thought, Belief, Opinion, and Expression • Freedom of Peaceful Assembly and Association
Freedom of… Conscience and Religion • Everyone in Canada is free to practice and follow their religion or faith. • No one can be forced to act in a way that violates their religious beliefs. Thought, Belief, Opinion, Expression • Includes all forms of communication and expression (e.g. speech, media, arts) • This freedom may be limited if a person promotes hate or discrimination.
Freedom of… Peaceful Assembly • Usually associated with the right to participate in peaceful demonstrations Association • Refers to the right of individuals to join together in groups (e.g. political parties, unions, clubs)
Democratic and Mobility Rights Democratic Rights • Sections 3,4, and 5 of theCharter • Definition: right of citizens to vote • Also guarantees that an election must be held every five years Mobility Rights • Section 6 of theCharter • Definition: right to enter and leave Canada; right to move between provinces and territories
Legal Rights • Sections 7–14 • Definition: Charter sections that protect personal and procedural rights in the criminal justice system • Section 7: Life, Liberty, Security of the Person • Section 8: Search and Seizure • Section 9: Detention or Imprisonment • Section 10: Arrest or Detention • Section 11: Criminal Proceedings • Section 12: Treatment or Punishment • Section 13: Self-Crimination • Section 14: Right to an Interpreter
Equality Rights • Section 15 of the Charter • Definition: Protection from discrimination • Specific grounds for discrimination include: race, ethnic origin, colour, religion, gender, age, mental or physical disability, and (most recently) sexual orientation. • A controversial equality issue in recent years has been equal rights for same-sex couples.
Language Rights • Sections 16–22 of theCharter • Definition: protection of Canada's official languages in all government institutions • Canada's two official languages are English and French. • These sections guarantee that both languages have equal importance in government matters. • Canadian laws must be printed in both French and English.
Aboriginal Rights • Section 25 of theCharter guarantees the existing rights of Aboriginal peoples (e.g. treaty rights). • Aboriginal issues are often argued in the courts. Some of the more common issues: • right to hunt and fish • land claims • desire for self-government
Enforcing The Charter Section 52 of the Constitution Act, 1982 • This section provides the courts and governments with these three remedies if legislation is found to be unconstitutional: • Strike down – a court ruling that a law violates one or more Charter rights and therefore is invalid. • Read down – a court ruling that a law violates one or more Charter rights and part of it needs to be changed or amended. • Read in – a court ruling that a law needs to be changed or amended, but that the law is still constitutional.
Enforcing The Charter contd… Section 24 of the Charter • This section allows anyone who believes their rights have been infringed to apply to a court for a remedy. • Infringed – violated or broken • Remedy – a method for a person to enforce his/her rights in court
Courts and the Legislature • Governments are elected to pass and change laws. • Our courts have the power to interpret these laws and decide whether or not they are constitutional (Do they violate the Charter?) • Judicial activism occurs when judges put their own views and values into court judgments.
